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Dean v. American Federation of Government Employees

September 20, 2007


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


Currently pending before the Court is the Motion for Summary Judgment filed by Defendant, American Federation of Government Employees ("AFGE"), Local 476 (hereinafter "Defendant" or "the Local"). Plaintiff, Robin Dean, bring claims pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq, alleging that her supervisor's unwelcome and pervasive sexual advances created a hostile work atmosphere during her tenure with Defendant, and that she was wrongfully terminated due to gender discrimination. See Am. Compl. ¶¶ 26-31. In addition, Plaintiff asserts a claim for defamation under District of Columbia law based on an e-mail sent by her supervisor, Edward Eitches, President of the Local, to all of the Local's members. See id. ¶¶ 32-34. Defendant moves for summary judgment on a number of grounds, including that (1) that the Local does not meet the statutory definition of an "employer" subject to suit under Title VII because it had less than fifteen employees at all relevant times and is not a "single employer" with the AFGE National Union (hereinafter "the National"); and (2) that Plaintiff fails to proffer factual evidence sufficient to demonstrate that the Local should be liable for Mr. Eitches' alleged defamation. Upon searching consideration of the filings currently before the Court, the attached exhibits, the relevant case law, and the entire record herein, the Court concludes that Defendant is correct with respect to each of these preliminary arguments. As a result, the Court grants-in-part Defendant's Motion for Summary Judgment, and does not reach the merits of either Plaintiff's Title VII claim or her defamation claim.*fn1


The Court begins its discussion of the facts by noting that this Court strictly adheres to the text of Local Civil Rule 56.1 (identical to Local Civil Rule 7(h)). The local rules for summary judgment "assist[] the district court to maintain docket control and to decide motions for summary judgment efficiently and effectively." Jackson v. Finnegan, Henderson, Farabow, Garret & Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996). "Requiring strict compliance with the local rule is justified both by the nature of summary judgment and by the rule's purposes. . . . The procedure contemplated by the rule thus isolates the facts that the parties assert are material, distinguishes disputed from undisputed facts, and identifies the pertinent parts of the record." Id. (quoting Gardels v. CIA, 637 F.2d 770, 773 (D.C. Cir. 1980)). "[A] district court should not be obliged to sift through hundreds of pages of depositions, affidavits, and interrogatories in order to make [its] own analysis and determination of what may, or may not, be a genuine issue of material fact." Id. (quoting Twist v. Meese, 854 F.2d 1421, 1425 (D.C. Cir. 1988)).

The Court further notes that its October 13, 2005 Scheduling and Procedures Order advised the parties of the Court's strict adherence to the dictates of Local Civil Rules 7(h) and 56.1. Dean v. AFGE, Civil Action No. 04-1466, Order (D.D.C. Oct. 13, 2005) (citing Burke v. Gould, 286 F.3d 513, 519 (D.C. Cir. 2002)); see also Dean v. AFGE, Civil Action No. 04-1466, Minute Order (July 10, 2006). In addition, the Court's Scheduling and Procedures Order advised the parties that, pursuant to Local Civil Rules 7(h) and 56.1, each party submitting a motion for summary judgment is required to attach a statement of material facts as to which that party contends there is no genuine issue, with specific citations to those portions of the record upon which the party relies in fashioning the statement. Dean v. AFGE, Civil Action No. 04-1466, Order (D.D.C. Oct. 13, 2005). The party opposing such a motion must, in turn, respond to each paragraph of the moving party's statement of material facts "with a correspondingly numbered paragraph, indicating whether that paragraph is admitted or denied," and including any information relevant to its response. Id. Furthermore, "[i]f the responding party has additional facts that are not addressed in the corresponding paragraphs, the responding party should include these at the end of its responsive statement . . .[a]t all points, parties must furnish precise citations to the portions of the record on which they rely." Id.

Plaintiff has met her obligation to respond to each paragraph of Defendant's Statement of Material Undisputed Facts (hereinafter "Def.'s Stmt.") with a correspondingly numbered paragraph in her Statement of Material Facts in Dispute (hereinafter "Pl.'s Stmt."), and has included, at the end of that Statement, a section entitled "Additional Facts That Are In Dispute Thereby Necessitating The Denial Of Defendant's Motion." See generally Pl.'s Stmt. However, as Defendant points out in its Reply and its accompanying Response to Plaintiff's Statement of Material Facts in Dispute (hereinafter "Def.'s Resp. Stmt."), Plaintiff altogether fails to provide record evidence to support a number of the purported factual assertions included in her "Additional Facts" section. See Def.'s Reply at 2-5; Def.'s Resp. Stmt. ¶ 1 (citing Pl.'s Stmt. ¶¶ 10, 11, 16, 18, 27-28, 31, 35, 38-40, 42-43, 45, 47-48, 50, 54, 56-58, 61-68, 70, 72-78, 80-81, 83-86, 94, 97-100, 103, 105, and 113-19). To the extent that Plaintiff does not support her factual assertions with record evidence, the Court can neither credit them, nor conclude that they controvert Defendant's factual assertions.

In addition, as Defendant also notes in its Reply and Response Statement, Plaintiff responds to a number of Defendant's factual assertions by stating that they are "neither disputed nor admitted, as Plaintiff does not have sufficient information to dispute or admit this allegation." See Def.'s Reply at 5, Def.'s Resp. Stmt. ¶ 2 (citing Pl.'s Stmt. ¶¶ 5, 14, 44, 46, 51-53, 59, 60, 69, 71, 79, 72, 88-93, 95-96, 101-02, 104, 106, 108, and 111). However, this case has moved beyond the motion to dismiss stage--indeed, Plaintiff was afforded ample time for discovery in this matter, including an extension of sixty days at Plaintiff's request. See Dean v. AFGE, Civil Action No. 04-1466, Minute Order (D.D.C. Mar. 3, 2006). At this stage, Plaintiff cannot controvert Defendant's factual assertions by simply refusing to admit them. Pursuant to Local Civil Rule 56.1, in resolving the present summary judgment motion, this Court "assumes that facts identified by the moving party in the statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." LCvR 56.1; 7(h). Thus, to the extent that Plaintiff fails to adduce record evidence to controvert Defendant's factual assertions, the Court considers those assertions admitted.

The Court sets forth below the facts that it finds are undisputed, as well as those facts that are supported by record evidence and uncontroverted by the opposing party. Because the Court does not reach the merits of Plaintiff's Title VII and defamation claims herein, the Court sets forth only such facts as are relevant to Defendant's preliminary arguments for summary judgment.

A. Background Facts

Plaintiff, Robin Dean, worked as a secretary for Defendant AFGE Local Union 476 from September 21, 2002 to June 23, 2003. Def.'s Stmt. ¶ 1; Pl.'s Stmt. ¶ 1. The Local is an unincorporated association and a local labor organization, which represents only employees of the United States Department of Housing and Urban Development ("HUD"). Def.'s Stmt. ¶ 2; Pl.'s Stmt. ¶ 2. Edward Eitches is a senior trial attorney in the General Counsel's Office at HUD, and has been the President of the Local since 1999. Def.'s Stmt. ¶ 3; Pl.'s Stmt. ¶ 3. Mr. Eitches hired Plaintiff and acted as her supervisor during her tenure with the Local. Def.'s Stmt. ¶ 4; Pl.'s Stmt. ¶ 4. Plaintiff was an at-will employee with no written contract or position description. Def.'s Stmt. ¶¶ 6-7; Pl.'s Stmt. ¶¶ 6-7. Plaintiff's duties at the Local included general secretarial and receptionist work. Def.'s Stmt. ¶¶ 6, 8-9; Pl.'s Stmt. ¶¶ 6, 8-9.

Plaintiff's Amended Complaint alleges that during her employment with the Local, she "was subjected to unwelcome sexual advances, requests for sexual favors, and other verbal and physical conduct of a sexual nature from" Mr. Eitches. Am. Compl. ¶ 7. As Defendant points out, Plaintiff does not proffer record evidence in support of these allegations, see Def.'s Reply at 17-18; however, this failing is ultimately irrelevant to the instant motion because the Court does not reach the merits of Plaintiff's Title VII claims. On June 23, 2005, an incident occurred between Plaintiff and Mr. Eitches, after which Plaintiff called the Federal Protective Services and had Mr. Eitches arrested and escorted out of the building. Def.'s Stmt. ¶ 12; Pl.'s Stmt. ¶12. Plaintiff subsequently charged Mr. Eitches with assault, but the United States Attorney refused to press charges. Def.'s Stmt. ¶ 13; Pl.'s Stmt. ¶ 13. The Executive Board of the Local voted to terminate Plaintiff's employment on June 23, 2003, and Mr. Eitches informed Plaintiff of her termination by way of phone message on the evening of June 23, 2003. Def.'s Stmt. ¶¶ 14-15; Pl.'s Stmt. ¶¶ 14-15.

B. Facts Relating to Plaintiff's Defamation Claim

On September 14, 2005--more than two years after Plaintiff's employment with the Local was terminated--Mr. Eitches sent an e-mail to Jaminta Fleming, Secretary of the Local, which he copied to the entire Local membership. Def.'s Stmt. ¶¶ 107-08; Pl.'s Stmt. ¶ 107. Mr. Eitches sent his e-mail in response to an e-mail sent the previous day by Dee Ann Walker, a Local member who opposed Mr. Eitches' re-election as President in the upcoming union election . Def.'s Stmt. ¶¶ 109-10; Pl.'s Stmt. ¶¶ 109-10. Ms. Walker's e-mail accused Mr. Eitches of, inter alia, criminal assault, sexual harassment, drunken behavior, child molestation, unlawful appropriation of union funds, corruption, dictatorial behavior, and betrayal. Def.'s Stmt. ¶¶ 110, 112 (quoting Dean Dep. at 94:4-14, 97:17-98:2); Pl.'s Stmt. ¶¶ 110, 112; see also 9/13/05 e-mail from D. Walker (Ex. C to Def.'s Mot. for Summ. J., Ex. 8 (9/26/06 Decl. of E. Eitches)). Ms. Walker's e-mail also included a verbatim copy of Plaintiff's Complaint in this case. Def.'s Stmt. ¶ 112; Pl.'s Stmt. ¶ 112; see also 9/13/05 e-mail from D. Walker.

Mr. Eitches' response e-mail stated that Ms. Walker's e-mail "concerns an EEO Complaint that [Plaintiff] filed against AFGE Local 476 . . . ." See 9/14/05 e-mail from E. Eitches (Ex. D to 9/26/06 Eitches Decl.). Mr. Eitches' e-mail continues:

[Plaintiff] was employed by the union from September 21, 2002. She was fired for cause (AWOL, unsatisfactory work performance, stealing, fraud, insubordination) on June 2, 2003. One executive board member asked that [Plaintiff] be given a last chance, which we did. She then proceeded . . . to have me illegally arrested for simple assault when she thrust her hand at my eye, and I moved it away. The US Attorney refused to even bring charges. After that incident, the executive board voted unanimously to have her terminated.

Id. Plaintiff asserts that Mr. Eitches sent his e-mail "to all local members, used his union account e-mail account to send the e-mail, and set the e-mail during normal work hours." Pl.'s Stmt. ¶ 133. However, Plaintiff offers no factual support for her assertion that Mr. Eitches used a union e-mail account to send his e-mail, and her assertion is directly controverted by the November 17, 2006 Declaration of Russell Varnado, First Vice-President and Chief Steward of the Local, in which Mr. Varnado states, "[t]here are no union e-mail accounts at Local 476. All union stewards and officers, including President Eitches, use a government e-mail account provided by HUD for all e-mail communications." 11/17/06 Varnado Decl. (Def.'s Reply, Ex. 1) ¶ 6.*fn2 The Court therefore concludes that Mr. Eitches did not send his September 14, 2005 e-mail from a Local e-mail account.

C. Facts Relating to Plaintiff's Title VII Claim

1. The Local's Personnel on Payroll, Officers, and Stewards

The Local has never had more than two full-time staff members on its payroll at a given time, and usually has only had one. Def.'s Stmt. ¶ 27.*fn3 At present, the Local has no staff on its payroll. Id.*fn4 Plaintiff worked for the Local during 2002 and 2003. Id. ¶ 1; Pl.'s Stmt. ¶ 1. The Local had a total of five individuals on its payroll at various points in time during 2002: Delores Walker, who was terminated after the first quarter; Ms. Walker's replacement, Valerie Johnson, who left in early September; and Plaintiff, who replaced Ms. Johnson; as well as Nique Bullock and Iris Cooper, two full-time HUD employees and union stewards who were paid by the Local to perform union work on their days off, as a second job. Def.'s Stmt. ¶¶ 29, 56, 62; Eitches Decl. ¶ 5; see also Eitches Dep. at 27:11-16; Second Christie Decl. ¶ 8.*fn5 The Local withheld income and Social Security taxes and filed the appropriate tax paperwork for Plaintiff, Johnson, Bullock, and Cooper during 2002. Def.'s Stmt. ¶¶ 30, 56 (citing Eitches Dep. at 28:11-29:29); Pl.'s Stmt. ¶ 30.

During 2003, the Local's cancelled check records indicate that the following individuals were on the Local's payroll: Plaintiff, Jacqueline Mathis, Naomi Taylor, and Sharon Thorne. Def.'s Stmt. ¶ 64; Second Christie Decl. ¶ 9. In addition, during his deposition in this matter, Mr. Eitches testified that the Local never had more than two full-time paid employees at one time, and he reiterates this assertion in his September 26, 2006 Declaration. See Eitches Dep. at 148:1-7; 152:16-22; Eitches Decl. ¶ 4.*fn6 The Court therefore concludes that the Local did not have more than fifteen individuals on its payroll in either 2002 or 2003. The Court would reach the same conclusion, even if it were to exclude the statements regarding the individuals on the Local's payroll during 2002 and 2003 included in the Second Christie Declaration, because Plaintiff proffers no evidence to controvert Mr. Eitches Deposition and Declaration testimony that the Local never had more than two individuals on its payroll at any point in time.

The Local's Constitution and Bylaws provides for an elected Executive Board consisting of a President, First Vice President, Second Vice President, Treasurer, and Secretary. See Def.'s Mot. for Summ. J., Ex. 3 (AFGE Local 476 Constitution (hereinafter "Local Constitution") at 3; and Bylaws of AFGE Local 476 (hereinafter "Local Bylaws") at 2). In 2003, the officers of the Local were Mr. Eitches, President; Ron Wallace, Vice President; Yvette Aidara, Secretary; Robert Aberasturi, Treasurer; and EnTien Yu, Sergeant-at-Arms. Def.'s Stmt. ¶ 36; Pl.'s Stmt. ¶ 36. In addition, the Local is permitted to designate up to twenty union stewards, who are assigned to perform union representation part-time. Def.'s Stmt. ¶¶ 44, 46.

Mr. Eitches works full-time at HUD as a senior trial attorney, and his salary is paid by HUD. Def.'s Stmt. ¶ 31; Eitches Dep. at 4:17-22; 7:6-9. Nevertheless, Mr. Eitches spends between 75 and 90% of his duty hours on "official time" in his capacity as President of the Local. Def.'s Stmt. ¶ 31; Eitches Dep. at 5:14-6:2. "Official time" refers to duty hours paid by HUD during which a HUD employee is authorized to perform representational duties on behalf of union members. Def.'s Stmt. ¶ 32; Eitches Dep. at 36:5-14; 38:2-4; Pl.'s Stmt. ¶ 32. Official time is authorized by law and as a result of the collective bargaining agreement between HUD and Local 476. Id. Specifically, the Federal Service Labor Relations Act provides for federal agencies to pay official time to federal employees who are union representatives "in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest." 5 U.S.C. § 7131(a), (d); Def.'s Stmt. ¶ 33; Pl.'s Stmt. ¶ 33. Furthermore, the collective bargaining agreement between HUD and the Local provides for official time for union representatives--including officers and stewards--for handling grievances and other complaints, attending meetings, and other representational functions. Def.'s Stmt. ¶ 34 (citing Eitches Decl. ¶ 9); Pl.'s Stmt. ¶ 34.

Although the Local is permitted to designate up to twenty stewards, it is limited to a total of 5.7 full-time equivalent positions ("FTEs") of paid official time for stewards and/or officers. Def.'s Stmt. ¶ 44; Eitches Dep. at 150:1-151:20. HUD enforces these limits by requiring most stewards to document their hours on a bi-weekly basis. Def.'s Stmt. ¶ 44 (citing Varnado Dep. at 48:16-49:20). The Local's stewards may be assigned to perform as little as 5% of their work week on union representation. Def.'s Stmt. ¶ 46 (citing Eitches Dep. at 35:3-36:14). In 2003, fourteen stewards were assigned to spend 10% of their work week on union representation, and four were assigned to spend 25% of their work week on union representation. Id. (citing AFGE Local Steward List (as of 11/03) (Eitches Decl., Ex. A)). Stewards perform general representational functions, including "assisting individual Local members and representing their interests in grievances, meetings, and enforcement of their rights under the collective bargaining agreement." Def.'s Stmt. ¶ 48 (citing 5/25/06 Dep. of Russell Varnado at 25:12-21; Local Bylaws at Sec. 23). Significantly, pursuant to 5 U.S.C. § 7131(b), Local stewards and ...

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